Chesal v. Nova Scotia (Attorney General) et al., 2003 NSCA 124

• Judge: Bateman, Cromwell and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 20, 2003
• Jurisdiction: Nova Scotia
• Citations: 2003 NSCA 124;(2003), 219 N.S.R.(2d) 139 (CA)

Chesal v. N.S. (A.G.) (2003), 219 N.S.R.(2d) 139 (CA);

 692 A.P.R. 139

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. NO.058

Unama'ki Board of Police Commissioners, Chapel Island Band Council, Eskasoni Band Council, Membertou Band Council and Waycobah Band Council (appellants) v. John Chesal, of the Canadian Broadcasting Corporation CBC Radio and the Attorney General of Nova Scotia (respondents)

(CA 195728; 2003 NSCA 124)

Indexed As: Chesal v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

Bateman, Cromwell and Oland, JJ.A.

November 20, 2003.

Summary:

The provincial and federal governments and four Indian bands negotiated an agreement providing for policing services by Tribal Police. An Audit Report, mandated by the Police Act, reviewed those policing services. A reporter's request under the Freedom of Information and Protection of Privacy Act for disclosure of the Report was denied. The reporter appealed under s. 41(1) of the Act. Disclosure was objected to on the grounds that, inter alia, (1) the Report was not a document subject to the Act; (2) disclosure could reasonably be expected to harm the conduct of relations between the provincial government and an aboriginal government or its agencies (s. 12(1)(a)(iii)); (3) the Report contained intergovernmental information received in confidence (s. 12(1)(b)); and (4) disclosure would constitute an unreasonable invasion of a third person's personal privacy (s. 20(1)).

The Nova Scotia Supreme Court, in a judgment reported at (2003), 211 N.S.R.(2d) 321; 662 A.P.R. 321, ordered disclosure of the report. The Report was not exempted from disclosure under s. 12(1)(a)(iii) or 12(1)(b). Disclosure did not constitute an unreasonable invasion of a third party's personal privacy where the information concerned the third party's position, functions or remuneration as an officer, employee or member of a public body (Tribal Police) (s. 20(4)(e)). The Indian bands appealed.

The Nova Scotia Court of Appeal dismissed the appeal. The trial judge did not err in ordering that the Report be released.

Crown - Topic 7103.3

Examination of public documents - General - Public body defined - [See Crown - Topic 7206 ].

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - The provincial and federal governments and four Indian bands negotiated an agreement providing for policing services by Tribal Police - An Audit Report, mandated by the Police Act, reviewed those policing services - A reporter's request under the Freedom of Information and Protection of Privacy Act for disclosure of the Report was denied - Disclosure was objected to on the ground that it would constitute an unreasonable invasion of a third person's personal privacy (s. 20(1)) - The trial judge held that the exemption from disclosure did not apply - Section 20(4) deemed disclosure of personal information not to be an unreasonable invasion of a third party's personal privacy if the information concerned "the third party's position, functions or remuneration as an officer, employee or member of a public body" - The Tribal Police was a "public body" and the information concerned the position, functions or remuneration of employees of that public body - The Nova Scotia Court of Appeal held that the trial judge did not err in finding that it was not established that the Tribal Police was not a public body - See paragraphs 81 to 90.

Crown - Topic 7211.2

Examination of public documents - Freedom of information - Bars - Relations between provincial and aboriginal governments - The provincial and federal governments and four Indian bands negotiated an agreement providing for policing services by Tribal Police - An Audit Report, mandated by the Police Act, reviewed those policing services - A reporter's request under the Freedom of Information and Protection of Privacy Act for disclosure of the Report was denied - Disclosure was objected to on the ground that it could reasonably be expected to harm the conduct of relations between the provincial government and an aboriginal government or its agencies (s. 12(1)(a)(iii)) - The trial judge held that the exemption from disclosure did not apply - All parties knew the Report was subject to the Act - The Report was mandated by statute - There was no reasonable expectation of harm - The mere assertion by the Indian bands that disclosure would be harmful was not sufficient to satisfy s. 12(1)(a)(iii) - The Nova Scotia Court of Appeal agreed that there was no evidence of any reasonable expectation of harm - See paragraphs 29 to 64.

Crown - Topic 7220.04

Examination of public documents - Freedom of information - Bars - Reasonable expectation of probable harm - Section 12(1)(a) of the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, provided that "the head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to harm the conduct by the Government of Nova Scotia of relations between the Government and any of the following or their agencies ..." - The trial judge stated that, given that the Act was to be broadly interpreted in favour of disclosure, "could reasonably be expected to harm" should be read as "could reasonably be expected to result in probable harm" - The Nova Scotia Court of Appeal held that the trial judge erred in stating the test - "Reasonably expected to harm" required more than a mere possibility of harm - See paragraphs 29 to 39.

Crown - Topic 7220.06

Examination of public documents - Freedom of information - Bars - Information obtained in confidence from another government - The provincial and federal governments and four Indian bands negotiated an agreement providing for policing services by Tribal Police - An Audit Report, mandated by the Police Act, reviewed those policing services - A reporter's request under the Freedom of Information and Protection of Privacy Act for disclosure of the Report was denied - Disclosure was objected to on the ground that the Report contained information received in confidence from another government (s. 12(1)(b)) - The trial judge held that the exemption to disclosure did not apply - Marking the information "confidential" did not make it so - The trial judge stated that "neither the Audit Report nor the data obtained from the Tribal Police or persons giving information which was used in preparation of the Audit Report was 'received in confidence', but rather obtained through the exercise of the Province's duty to ensure to adequate policing ..." - The Nova Scotia Court of Appeal affirmed the result - The information was not "received" in confidence by the provincial government - Section 12(1)(b) required an expectation of privacy on both the supplier and receiver of the information - See paragraphs 65 to 80.

Cases Noticed:

O'Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat) (2001), 197 N.S.R.(2d) 154; 616 A.P.R. 154 (C.A.), refd to. [para. 21].

Canada Packers Inc. v. Canada (Minister of Agriculture) et al. (1988), 87 N.R. 81 (F.C.A.), refd to. [para. 32].

McDonald v. McDonald, [1970] 3 O.R. 297 (H.C.), refd to. [para. 36].

Workers' Compensation Board (Ont.) v. Information and Privacy Commissioner (Ont.) (1998), 112 O.A.C. 121; 164 D.L.R.(4th) 129 (C.A.), refd to. [para. 47].

Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282, refd to. [para. 50].

Hien Do-Ky Vietnamese Refugee Sponsorship Committee v. Canada (Minister of Foreign Affairs and International Trade) (1999), 241 N.R. 308; 173 D.L.R.(4th) 515 (F.C.A.), affing. (1997), 126 F.T.R. 81; 143 D.L.R.(4th) 746 (T.D.), refd to. [para. 58].

Information Commissioner (Can.) v. Prime Minister (Can.), [1993] 1 F.C. 427; 57 F.T.R. 180 (T.D.), refd to. [para. 62].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, sect. 3(1)(j) [paras. 23, 84]; sect. 3(1)(k) [para. 22]; sect. 12(1) [para. 29]; sect. 20(1) [para. 81]; sect. 20(4) [para. 82].

Counsel:

Bruce Wildsmith, Q.C., for the appellants, Unama'ki Board of Police Commissioners, Membertou Band Council, Waycobah Band Council and Chapel Island Band Council;

Appellant, Eskasoni Band Council, not appearing;

David C. Coles and David Doyle, for the respondent, John Chesal;

Edward A. Gores, for the respondent, Attorney General of Canada.

This appeal was heard on October 7, 2003, at Halifax, N.S., before Bateman, Cromwell and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On November 20, 2003, Bateman, J.A., delivered the following judgment for the Court of Appeal.